Citation Nr: 0204655
Decision Date: 05/16/02 Archive Date: 05/24/02
DOCKET NO. 96-12 377 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for a right ankle
disorder.
2. Entitlement to service connection for a right elbow
disorder.
3. Entitlement to service connection for high cholesterol.
4. Entitlement to service connection for a sinus disorder,
with allergic rhinitis.
(The issue of entitlement to service connection for a
psychiatric disorder will be the subject of a later
decision.)
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Havelka, Counsel
INTRODUCTION
The veteran's active military service extended from August
1975 to April 1994.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 1995 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama. That rating decision, in part,
denied service connection for a right elbow disorder, a right
ankle disorder, emotional stress, high cholesterol, and a
sinus disorder.
The case was previously before the Board in July 1998, when
it was remanded for verification of the veteran's service and
for VA medical examination of the veteran and medical
opinions. The requested development has been completed. The
Board now proceeds with its review of the appeal.
The Board is undertaking additional development on the issue
of entitlement to service connection for a psychiatric
disorder pursuant to authority granted by 67 Fed. Reg. 3,099,
3,104 (Jan. 23, 2002) (to be codified at 38 C.F.R. §
19.9(a)(2)). When it is completed, the Board will provide
notice of the development as required by Rule of Practice
903. 67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to be
codified at 38 C.F.R. § 20.903.) After giving the notice and
reviewing any response to the notice, the Board will prepare
a separate decision addressing these issues.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal with respect
to the claims for service connection for a right elbow
disorder, a right ankle disorder, a sinus disorder, and high
cholesterol.
2. The right ankle symptoms during service were transitory
in nature and resolved without residual disability.
3. There is no competent medical evidence of any current
right ankle disability.
4. The service medical records reveal a diagnosis of right
elbow bursitis in 1979.
5. The right elbow symptoms during service were transitory
in nature and resolved without residual disability.
6. There is no competent medical evidence of any current
right elbow disability.
7. The service medical records reveal that the veteran was
identified as having elevated cholesterol levels during
service.
8. The service medical records reveal that the veteran did
not have a diagnosis of any cardiovascular disorder or
disease resulting from his elevated cholesterol levels.
9. The competent medical evidence of record reveals that the
veteran continues to have elevated cholesterol levels, but
that there in no evidence of the presence of any disease.
10. The service medical records reveal that the veteran had
complaints of sinus congestion during service.
11. There is current medical evidence that the veteran is
diagnosed with allergic rhinitis and chronic sinusitis.
CONCLUSIONS OF LAW
1. A right ankle disorder was not incurred in, or aggravated
by, active military service. 38 U.S.C.A. §§ 101(16), 1110,
1131 (West 1991); 38 C.F.R. § 3.303 (2001).
2. A right elbow disorder was not incurred in, or aggravated
by, active military service. 38 U.S.C.A. §§ 101(16), 1110,
1131 (West 1991); 38 C.F.R. § 3.303 (2001).
3. Elevated cholesterol is not a disease, disability, or
injury for which applicable law permits compensation or
service connection. 38 U.S.C.A. §§ 101(16), 105(a), 1131
(West 1991 & Supp. 2001); 38 C.F.R. § 3.303(c) (2001);
Sabonis v. Brown, 6 Vet. App. 426 (1994).
4. Allergic rhinitis and chronic sinusitis were incurred in
active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131
(West 1991); 38 C.F.R. § 3.303 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Initial Matters
A. Veterans Claims Assistance Act of 2000
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107,
5126 (West Supp. 2001). Among other things, this law
eliminates the concept of a well-grounded claim, redefines
the obligations of VA with respect to the duty to assist, and
supersedes the decision of the Court in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No.
96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order),
which had held that VA cannot assist in the development of a
claim that is not well grounded. This change in the law is
applicable to all claims filed on or after the date of
enactment of VCAA, or filed before the date of enactment and
not yet final as of that date. 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West Supp. 2001). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991). The new law
also imposes a significant duty to assist the veteran in his
claim and to provide the veteran notice of evidence needed to
support the claim. More recently, new regulations were
adopted to implement the VCAA. See 66 Fed. Reg. 45,620
(Aug. 29, 2001) (to be codified as amended at 38 C.F.R §§
3.102, 3.156(a), 3.159 and 3.326(a)).
The Board finds that a remand or additional development is
not required for the issues adjudicated below. The veteran
has been notified on numerous occasions as to the evidence
needed to support his claims. In January 2002, he submitted
a statement that indicated that there was no additional
medical evidence available which would support his claim.
Moreover, the veteran has also been accorded VA medical
examinations for the disabilities for which he is claiming
service connection. As such, remand is not necessary.
B. Service Connection
Generally, service connection may be granted for a disability
resulting from disease or injury incurred in or aggravated by
active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131
(West 1991).
Service connection may be established for a current
disability in several ways including on a "direct" basis.
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303(a),
3.304 (2001). Direct service connection may be established
for a disability resulting from diseases or injuries which
are clearly present in service or for a disease diagnosed
after discharge from service, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(a), (b),
(d) (2001). Establishing direct service connection for a
disability that has not been clearly shown in service
requires the existence of a current disability and a
relationship or connection between that disability and a
disease contracted or an injury sustained during service.
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(d)
(2001); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992);
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).
II. Analysis
The veteran's service medical records appear to be complete.
The veteran served in the Army for almost 20 years. The RO
has obtained the veteran's service medical records and they
are quite numerous in number. They contain entrance and
separation examination reports along with medical treatment
records spanning the entire period of the veteran's military
service. Moreover, the veteran served as a pilot during much
of his period of active service. As such, there is a
considerable volume of flight physical examinations of
record.
A. Right Ankle
A May 1987 service department medical treatment report
reveals that the veteran had complaints of right ankle pain.
The veteran reported twisting his ankle the day before.
Examination revealed slight discoloration, swelling,
tenderness, and painful motion. X-ray examination revealed
no fracture. A June 1987 follow up treatment record reveals
that the veteran's ankle pain had resolved and that he was
fit for duty. Subsequent to this there is no indication in
any of the service medical records of any continued
complaints of right ankle. Specifically, there are multiple
examination reports that reveal that the veteran's lower
extremities were "normal" with no abnormalities noted by
the examining physician. On the veteran's April 1994
separation examination the only lower extremity abnormalities
noted were related to his knees and a gunshot wound of his
left foot.
In October 1998, a VA examination of the veteran was
conducted. The veteran reported occasional aching, popping,
and swelling of the right ankle. Physical examination of the
right ankle revealed slight tenderness but no edema and no
deformity. Range of motion testing of the right ankle
revealed dorsiflexion to 10 degrees and plantar flexion to 45
degrees. X-ray examination revealed no bone or joint
abnormality of the right ankle. The diagnosis was "remote
injury of the right ankle with intermittent chronic pain."
In October 2001, the veteran presented sworn testimony at a
hearing before a RO Decision Review Officer. The veteran
testified about his right ankle injury during service, but
indicated that he did not seek any additional treatment for
right ankle pain subsequent to the initial injury. In a
January 2002 statement the veteran indicated that he had
treated his right ankle pain with over-the-counter pain
medication and that he had failed to report the disorder for
fear of loosing his flight status.
The evidence of record reveals that the veteran did have a
twisting injury to his right ankle in May 1987. However, the
service medical records reveal that the injury apparently
healed without any residual disability. There is no
indication in the service medical records subsequent to June
1987 that the veteran had any complaints related to his right
ankle. On separation examination in 1994, the veteran did
not report any complaints related to his right ankle. The
recent VA examination reveals that the veteran has some
tenderness of his right ankle, but that it is normal on x-ray
and physical examination.
The preponderance of the evidence is against the veteran's
claim for service connection for a right ankle disorder. The
veteran did twist his ankle during service in 1987. However,
there is no evidence of any residual disability. The recent
VA examination reveals some tenderness of the right ankle and
the veteran reports having intermittent pain, but there is no
diagnosis of a disability. "Pain alone, without a diagnosed
or identifiable underlying malady or condition, does not in
and of itself constitute a disability for which service
connection may be granted." Sanchez-Benitez v. West, 13
Vet. App. 282, 285 (1999). With no evidence of a current
disability service connection cannot be granted. Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress
specifically limits entitlement for service-connected disease
or injury to cases where such incidents have resulted in a
disability. See 38 U.S.C. § 1110 (formerly § 310). In the
absence of proof of present disability there can be no valid
claim."). As such, service connection for a right ankle
disability must be denied.
B. Right Elbow
Service medical records reveal that in June 1979 the veteran
had complaints of right elbow pain. On physical examination
his right elbow was swollen, warm, and tender. The initial
diagnosis was to rule out osteomyelitis and arthritis. He
was referred for x-ray examination of the elbow and an
orthopedic consultation. Initial x-ray examination reveled
no bone or joint abnormality and no soft tissue calcification
or foreign bodies. Moderate soft tissue swelling was present
in the posterior elbow over the olecranon area. The
orthopedic consultation concluded that the proper diagnosis
was "acute olecranon bursitis. Treatment required a long
arm splint to immobilize the elbow. Several days later
another x-ray of the veteran's right elbow was conducted; no
abnormalities were noted. By July 2, 1979, the veteran's
swelling and complaints of pain had subsided and he was
declared fit for duty.
On subsequent service department medical examinations the
veteran did not report any symptoms, or residual disability
related to his right elbow. On his April 1994 separation
examination the veteran did not report having any right elbow
symptoms. The veteran's upper extremities were evaluated as
"normal" with no abnormalities noted by the examining
physician.
In October 1998, a VA examination of the veteran was
conducted. The veteran reported having occasional pain and
slight swelling of the right elbow; he was not under any
course of treatment. Physical examination of the right elbow
revealed no tenderness, no deformity, and no edema. Range of
motion testing of the right elbow was essentially normal. X-
ray examination revealed no bone or joint abnormality. The
diagnosis was "remote history of right olecranon bursitis
with persistent occasional pain."
In October 2001, the veteran presented sworn testimony at a
hearing before a RO Decision Review Officer. The veteran
testified about his right elbow pain during service, but
indicated that he did not seek any additional treatment
subsequent to the initial treatment. In a January 2002
statement, the veteran indicated that he failed to report the
disorder for fear of loosing his flight status. He also
indicated that VA did not examine his right elbow; however,
review of the evidence of record shows a 1998 VA examination
that clearly indicated that the veteran's right elbow was
examined physically. Range of motion testing was conducted
and an x-ray of the right elbow was also taken.
The preponderance of the evidence is against the veteran's
claim for service connection for a right elbow disorder. The
veteran was treated for right elbow bursitis during service
in 1979. However, there is no evidence or any residual
disability. The recent VA examination reveals no
abnormalities and only that the veteran reports having
occasional pain. There is no diagnosis of a current
disability, and no objective evidence of any such disability.
Again, we note that "pain alone, without a diagnosed or
identifiable underlying malady or condition, does not in and
of itself constitute a disability for which service
connection may be granted." Sanchez-Benitez v. West, 13
Vet. App. 282, 285 (1999). With no evidence of a current
disability, service connection cannot be granted. Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress
specifically limits entitlement for service-connected disease
or injury to cases where such incidents have resulted in a
disability. See 38 U.S.C. § 1110 (formerly § 310). In the
absence of proof of present disability there can be no valid
claim."). As such, service connection for a right elbow
disability must be denied.
C. High Cholesterol.
There is ample evidence in the veteran's service medical
records which confirms that he was identified as having
elevated cholesterol during military service. The Board
concedes that he had high cholesterol during service.
Because of the veteran's elevated cholesterol, various
cardiology consultations, with accompanying
electrocardiograms reports, were conducted. All of these
evaluations identified the veteran as having normal
electrocardiogram results and being free of cardiovascular
disease. The veteran's April 1994 separation examination
report notes that he had high cholesterol, but that his heart
and vascular system were normal. An electrocardiogram was
reported as revealing normal results.
In October 1998, a VA examination of the veteran was
conducted. Laboratory testing revealed that the veteran had
high cholesterol. Electrocardiogram results revealed "a
sinus bradycardia of 53, but otherwise within normal
limits." The diagnosis was "hypercholesterolemia" (high
cholesterol). The examining physician specifically noted
that "regarding the patient's elevated cholesterol, the
history obtained reveals no evidence of disease which has yet
been manifested by the elevated cholesterol condition.
However, he has a potential to have cardiac problems, stroke
or peripheral vascular disease related to this problem."
The medical evidence reveals that the veteran had high
cholesterol during service and he continues to have elevated
cholesterol today. However, the problem with the veteran's
claim is that the evidence of record does not contain medical
evidence of current disability. There is also no medical
evidence of a link between a current disability and service
or post-service continuity of symptomatology of high
cholesterol. Congress specifically limited entitlement for
service-connected disease or injury to cases where such
incidents have resulted in a disability. Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992). High cholesterol
itself is not a disease, injury, or disability, even though
it may be considered a risk factor in the development of
certain diseases. In the absence of proof of present
disability, there can be no valid claim. See 38 U.S.C.A. §
1110 (West 1991 and Supp. 2001).
The evidence of record clearly shows that the veteran does
not have heart disease or any other medical disability
related to his elevated cholesterol. In the present case,
the veteran has not identified a disability for which
compensation is payable. An elevated cholesterol level
represents only a laboratory finding, and not an actual
disability in and of itself for which VA compensation
benefits are payable. See 61 Fed. Reg. 20440, 20445 (May 7,
1996). Hypercholesterolemia is, by definition, an abnormally
large amount of cholesterol in the blood. Dorland's
Illustrated Medical Dictionary 792 (28th ed. 1994). The term
"disability" as used for VA purposes refers to impairment
of earning capacity. See Allen v. Brown, 7 Vet. App. 439,
448 (1995). Hypercholesterolemia does not necessarily cause
any impairment of earning capacity and is not a disease
entity. The record does not include any competent medical
evidence that the veteran currently has a disability
associated with hypercholesterolemia.
In sum, the applicable laws and regulations are unambiguous
and they do not permit a grant of service connection for a
laboratory finding, absent a showing of related disability by
disease or injury. As the veteran's claim is lacking in
legal merit, denial of the claim advanced by operation of law
is required. Sabonis v. Brown, 6 Vet. App. 426 (1994).
D. Sinus Disorder
Review of the veteran's service medical record reveals
several medical treatment records showing that the veteran
was treated for sinus congestion. There are varying
diagnoses made including rhinitis, viral syndrome, upper
respiratory infection (URI), and a cold. A January 1986
treatment record refers to the complaints as a "sinus
condition" in the narrative portion of the record.
In April 1994, a separation examination of the veteran was
conducted. The veteran reported having a history of
sinusitis. The examining physician noted "sinusitis?
Allergy related, all Fl[igh]t Physicals marked 'No.' " On
the separation examination the examining physician evaluated
the veteran's sinuses as "normal" with no abnormalities
noted.
In October 1998, a VA examination of the veteran was
conducted. The veteran reported a history of sinus
congestion dating back to service in 1982. X-ray examination
revealed that the veteran had chronic sinusitis of the left
maxillary sinus. The examining physician's diagnosis was
allergic rhinitis and chronic sinusitis.
There is clearly evidence of some treatment of the veteran
for sinus congestion during service. However, there are
flight physical examinations where the veteran indicated he
did not have sinus problems. The veteran indicates that he
did not report his sinus symptoms on his flight physical
examination because he was afraid of loosing his flight
status. The veteran was a helicopter pilot in service. As
the Board understands military aviation medicine, a sinus
condition is a medical condition that can interfere with
one's flight status. Apparently, such a condition interferes
with breathing from oxygen masks and can be problematic with
changes of air pressure encountered by military pilots at
high altitudes. In the present case, the veteran was a
helicopter pilot and would probably not have flown at such
altitudes. Therefore, his ability to maintain a flight
status while having a sinus condition is plausible.
Moreover, the VA examination of record shows a diagnosis of
sinusitis and identifies it as being chronic in nature. The
evidence of record supports the veteran's claim. Service
connection is granted for chronic sinusitis and allergic
rhinitis.
ORDER
Service connection for a right ankle disorder is denied.
Service connection for a right elbow disorder is denied.
Service connection for high cholesterol is denied.
Service connection for chronic sinusitis and allergic
rhinitis is granted.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.